Opinion
Civil No. 3:04-CV-0868-H.
November 2, 2004
MEMORANDUM OPINION AND ORDER
Before the Court is Plaintiff's Motion for Summary Judgment, filed August 6, 2004; Defendants' Response and Cross-Motion for Summary Judgment, filed September 15, 2004; and Plaintiff's Reply, filed October 7, 2004. For the following reasons, the Court is of the opinion that Plaintiff's Motion should be GRANTED in part and DENIED in part and Defendants' Cross-Motion should be DENIED in part and GRANTED in part.
I. Background
The instant case arises from Flowserve U.S., Inc.'s ("Flowserve") request for documents from the Occupational Safety and Health Administration ("OSHA") under the Freedom of Information Act ("FOIA" or "the Act"), 5 U.S.C. § 552 (2004). Flowserve, a party to a lawsuit related to a refinery fire, seeks documents pertaining to OSHA's investigation of the cause of the fire. (Pl.'s Br. at 4). Specifically, Flowserve seeks production of employee testimony and notes of employee testimony related to the fire and documents related to OSHA's investigation of the causes of the fire concerning TEAM Industrial Services, Inc. ("TEAM"). ( Id. at 1.)
Flowserve's initial FOIA request of June 10, 2003, sought "any and all documents" related to the "oil refinery explosion and fire. . . ." ( Id. at 7; Pl.'s Exh. 11.) This request included "any accident reports, investigatory findings and other documents related to the fire. . . ." (Pl.'s Br. at 7; Pl.'s Exh. 11.) OSHA produced some documents in response to Flowserve's request, but withheld other documents. (Pl.'s Br. at 7.) Flowserve appealed OSHA's decision to the Department of Labor ("DOL") pursuant to 29 C.F.R. § 70.22 on September 29, 2003. (Pl.'s Exh. 13.) DOL responded to Flowserve's appeal by disclosing some additional documents and withholding the documents which form the basis for the instant case. ( See Pl.'s Exh. 14.) DOL's response to Flowserve's appeal constituted a final agency action for purposes of establishing the ripeness of the instant appeal to this Court. ( See Pl.'s Exh. 14.) Flowserve now appeals DOL's response claiming that some documents and portions of documents were improperly withheld and should be disclosed.
II. Summary Judgment Standard
Summary judgment is appropriate where the facts and law as represented in the pleadings, affidavits, and other summary judgment evidence illustrate that no reasonable trier of fact could find for the non-moving party as to any material fact. FED.R.CIV.P. 56; Lujan v. National Wildlife Federation, 497 U.S. 871, 888 (1990); Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 251 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 323-25 (1986); Innovative Database Systs. v. Morales, 990 F.2d 217 (5th Cir. 1993). "The moving party bears the initial burden of identifying those portions of the pleadings and discovery in the record that it believes demonstrate the absence of a genuine issue of material fact, but is not required to negate elements of the nonmoving party's case." Lynch Properties, Inc. v. Potomac Ins. Co. of Ill., 140 F.3d 622, 625 (5th Cir. 1998) (citing Celotex, 477 U.S. at 322-25). If the movant fails to meet its initial burden, the motion must be denied, regardless of the nonmovant's response. Little v. Liquid Air Corp., 37 F.3d 1069, 1075 (5th Cir. 1994).
If the movant does meet its burden, the nonmovant must go beyond the pleadings and designate specific facts showing that a genuine issue of material fact exists for trial. Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587 (1986); Edwards v. Your Credit, Inc., 148 F.3d 427, 431 (5th Cir. 1998). A party opposing summary judgment may not rest on mere conclusory allegations or denials in its pleadings unsupported by specific facts presented in affidavits opposing the motion for summary judgment. FED. R. CIV. P. 56(e); Lujan, 497 U.S. at 888; Hightower v. Texas Hosp. Assn., 65 F.3d 443, 447 (5th Cir. 1995).
In determining whether genuine issues of fact exist, "[f]actual controversies are construed in the light most favorable to the nonmovant, but only if both parties have introduced evidence showing that a controversy exists." Lynch, 140 F.3d at 625; Evans v. City of Houston, 246 F.3d 344, 348 (5th Cir. 2001); see also Eastman Kodak v. Image Technical Services, 504 U.S. 451 (1992). However, in the absence of any proof, the Court will not assume that the non-moving party could or would prove the necessary facts. Lynch, 140 F.3d at 625. A party must do more than simply show some "metaphysical doubt as to the material facts." Matsushita, 475 U.S. at 586. "If the record, taken as a whole, could not lead a rational trier of fact to find for the non-moving party, there is no genuine issue for trial." Friou v. Phillips Petroleum Co., 948 F.2d 972, 974 (5th Cir. 1991).
III. Analysis
"Jurisdiction in a FOIA suit is based upon the plaintiff's showing that an agency has (1) improperly (2) withheld (3) agency records." Goldgar v. Off. of Admin., Exec. Off. of the Pres., 26 F.3d 32, 34 (5th Cir. 1994). Plaintiff has properly pled the three Goldgar factors and therefore jurisdiction in the case is proper.
Upon receipt of a request for production, a government agency must disclose the documents, unless it can demonstrate that such documents may be withheld under one of the nine exemptions listed in 5 U.S.C. § 552(b). See Nat'l Archives Records Admin. v. Favish, 124 S.Ct. 1570, 1574 (2004). The "burden [is] on the agency to sustain its action." 5 U.S.C. § 552(a)(4)(B). See Cooper Cameron Corp. v. United States Dep't of Labor, 280 F.3d 539, 544-45 (5th Cir. 2002) (citing Dep't of Air Force v. Rose, 425 U.S. 352, 360 (1976)). The agency cannot meet its burden of justifying exemption of a disclosure through mere conclusory or generalized statements. See Church of Scientology of Tex. v. Internal Rev. Serv., 816 F.Supp. 1138, 1147 (W.D. Tex. 1993). Further, exempt portions of documents should be redacted from a document wherever possible, with the remainder of the document disclosed. 5 U.S.C. § 552(b).
The agency must also demonstrate that it conducted a search reasonably calculated to uncover all documents relevant to the request for production. See Valencia-Lucena v. United States Coast Guard, 180 F.3d 321, 325 (D.C. Cir. 1999). Although the "search by an agency is not required to be `perfect' but instead must be reasonable," McQueen v. United States, 264 F.Supp.2d 502, 526-27 (S.D. Tex. 2003), an agency must "make more than perfunctory searches and, indeed, . . . follow through on obvious leads to discover requested documents." Id. at 325. This search includes documents which are known to exist where the search for such documents does not present an undue burden for the agency. Id. at 327. No undue burden has been alleged in the instant case.
The Court reviews agency determinations of FOIA disclosures de novo. 5 U.S.C. § 552(a)(4)(B); see Cooper Cameron, 280 F.3d at 544-45. For most FOIA cases, summary judgment is appropriate since no genuine issues of material fact are in dispute. Fed.R.Civ.P. 56(c); see Flightsafety Svcs. Corp. v. Dep't of Labor, 326 F.3d 607, 610 (5th Cir. 2003).
A. Exemption 7(D)
Defendants seek to exempt from disclosure the entirety of ten non-management employee statements and related interview notes under 5 U.S.C. § 552(b)(7)(D). Section 552(b)(7)(D) provides an exemption from disclosure for information that "could reasonably be expected to disclose the identity of a confidential source. . . ." To obtain an exemption in such a case, the informant must have "provided information under an express assurance of confidentiality or in circumstances from which such an assurance could be reasonably inferred." Dep't of Justice v. Landano, 508 U.S. 165, 172 (1993) (internal quotation omitted). If an express assurance is asserted, "the government must indicate where these assurances of confidentiality are memorialized." Cooper Cameron, 280 F.3d at 551 (internal quotation omitted).
Employees 1, 3, 6, 8, and 9 each signed statements indicating that their interviews were confidential. ( See Def. App. at 9-19, 31). The employees' signatures indicated that "the above confidential interview statement is true and accurate to the best of my knowledge." ( See id. at 31). Plaintiff contends that such a signature, after the employees made their statements, is not sufficient to establish that the employee answered questions based upon assurances of confidentiality. (Pl.'s Reply at 9). Indeed, "[t]he question posed in exemption 7(D) cases `is not whether the requested document is of the type that the agency usually treats as confidential, but whether the particular source spoke with an understanding that the communication would remain confidential.'" See Billington v. United States Dep't of Justice, 233 F.3d 581, 584 (D.C. Cir. 2000) (quoting Landano, 508 U.S. at 172).
Defendants assert that express assurances of confidentiality were established because the interviewer "explained to the non-management employee that the interview is confidential, and . . . that OSHA will keep his or her statement confidential to the extent allowed by law." (Def.'s App. at 30). Defendants' evidence indicates that the OSHA investigator informed Employees 1-10 of the confidentiality of the interview and conducted the interview in private, either alone or with another OSHA Compliance Safety and Health Officer. (Def.'s App. at 2). The Court finds these verbal assurances, buttressed by the private nature of the interviews (see Def.'s App. at 2), to create an express assurance of confidentiality warranting exemption under 5 U.S.C. § 552(b)(7)(D) for non-management employees 1-10. See Martinez v. Equal Employment Opportunity Comm'n, No. Civ.A.SA:04-CA-0391-XR, 2004 WL 2359895, at *4 (W.D. Tex. Oct. 19, 2004).
However, the Court must also determine whether information from these employee statements and interview notes may be disclosed in a redacted version in a reasonable form which will not reveal the identity of the confidential informant. 5 U.S.C. § 552(b). DOL's final agency determination that the forty-five pages of twelve employee statements and eleven pages of interview notes are not reasonably segregable is based upon its findings that redaction of the exempted material would leave the remainder nonsensical. ( See Pl.'s Exh. 14, at 2; Def.'s App. at 9-19). Defendants' evidence also indicates, through a standard declaration format, that the contents of the statements for Employees 1-10 could reveal the identities of the confidential informants. (Def.'s App. at 9-17). However, Defendants do not provide the Court with specific reasons how the substantive information might reveal the identity of the confidential informants when such information is related to employee 1's views about the accident ( id. at 9); employee 2's account of the accident ( id. at 10); employee 3's experiences with the valve and personal comments related to his work ( id. at 11); employee 4's description of the equipment or experiences with the valve ( id. at 12); employee 5's experiences with the valve or identification of other employees that should be interviewed concerning the accident ( id.); employee 6's description of his activities at the time of the accident ( id. at 13); employees 7 and 9's discussions of the valve and its problems ( id. at 14, 15); employee 8's activities and observations at the time of the accident ( id. at 15); and employee 10's description of the history of work on the valve and his safety concerns regarding the valve ( id. at 16). The Court finds the exemption under 5 U.S.C. § 552(b)(5) inapplicable.
Accordingly, the Court GRANTS Plaintiff's Motion for Summary Judgment and DENIES Defendants' Cross-Motion for Summary Judgment as to the documents withheld pursuant to § 552(b)(7)(D), including the employee statements for Employees 1-10 and the associated interview notes. The Court ORDERS the production of such documents to the extent possible without disclosing personal identity information.
B. Exemption 7(C)
Defendants also seek to exempt two management employee interview statements in their entirety under 5 U.S.C. § 552(b)(7)(C). Section 552(b)(7)(C) provides an exemption when the release of documents "could reasonably be expected to constitute an unwarranted invasion of personal privacy." 5 U.S.C. § 552(b)(7)(C). It is undisputed that the documents were gathered for law enforcement purposes. To determine whether an unwarranted invasion of privacy might exist, the Court engages in a three step approach, determining: (1) "whether disclosure would create an invasion of privacy at all and, if so, how serious an invasion;" (2) the Court evaluates the public interest in disclosure; and (3) the Court "balance[s] the competing interests to determine whether the invasion of privacy is clearly unwarranted." Washington Post Co. v. United States Dep't of Health Hum. Svcs., 690 F.2d 252, 261 (D.C. Cir. 1982).
The Court has no evidence before it to know whether the two management employees were deposed in the underlying suit. Therefore, the Court cannot determine whether a privacy interest exists related to the information provided in the employee statements. Despite Defendants' assertion that the employees have "unrebutted personal privacy interests in the contents of the statements" (Def.'s App. at 9-19), Defendants do not provide evidence supporting such a conclusion as to the management employees. Therefore, Defendants' conclusory statements are insufficient to establish a particular privacy interest related to the information provided by the informants.
Having failed to identify a privacy interest other than that established to protect personal identity and linking information, see Cooper Cameron, 280 F.3d at 546-47; Alirez v. NLRB, 676 F.2d 423, 428 (10th Cir. 1982) (noting that deleting personal information from the statement might not be sufficient to protect the privacy interests of the informants where the "employer could identify the employee involved, or could narrow the group down to two or three."), Defendants fail to establish sufficient justification to overcome the significant public interest recognized by Cooper Cameron in evaluating OSHA investigations for exemption of the substantive information in the employee statements. ( See Pl.'s Br. at 17). See Cooper Cameron, 280 F.3d at 546-49. Therefore, the Court REVERSES DOL's determination as to the documents withheld pursuant to 5 U.S.C. § 552(b)(7)(C) in so far as they can be redacted to provide substantive information.
A response to a FOIA request is generally considered a "public disclosure." See U.S. ex rel. Reagan v. East Tex. Med. Ctr. Reg'l Healthcare, 384 F.3d 168, 175-76 (5th Cir. 2004). The Court recognizes that many of the documents may not be made publicly available due to a pre-existing protective order and confidentiality agreement (see Pl.'s Reply, Exh. A), meaning that the disclosure would not make information available to the public for scrutiny. See United States ex rel. Mistick v. Hous. Auth. of the City of Pittsburgh, 186 F.3d 376, 383 (3d Cir. 1999). In spite of the protective order, the public interest nevertheless remains, and "the specific motives of the party making the FOIA request are irrelevant." Cooper Cameron, 280 F.3d at 547 (quoting Halloran v. Veterans Admin., 874 F.2d 315, 323 (5th Cir. 1989)).
Accordingly, the Court GRANTS Plaintiff's Motion for Summary Judgment and DENIES Defendants' Cross-Motion for Summary Judgment as to the two management employee statements withheld pursuant to § 552(b)(7)(C). The Court finds the public interest sufficiently great to outweigh the limited private privacy interest protecting linking information and therefore ORDERS the production of such documents, redacted to prevent disclosure of personal identity information.
C. Exemption 5
Plaintiff also challenges documents withheld by Defendants under the exemption provided by 5 U.S.C. § 552(b)(5). Based upon the following analysis, the Court concludes that the issue of whether the documents were correctly withheld under § 552(b)(5) is not properly before the Court.
The Court therefore need not address whether such documents were properly segregated as asserted by Defendants. ( See Def.'s App. at 19).
Plaintiff's Reply to Defendants' Response and Cross-Motion for Summary Judgment does not rebut Defendants' claim that some documents were properly withheld pursuant to deliberative process exemption of 5 U.S.C. § 552(b)(5). Nat'l Labor Rel. Bd. v. Sears, Roebuck Co., 421 U.S. 132, 149 (1975). Although aware of the application of the exemption by OSHA and DOL, ( see Pl.'s Exh. 12; P.'s Exh. 13, at 3), Plaintiff does not raise the issue in its briefed materials before this Court.
Although Plaintiff's materials before the Court are not explicit in this regard, it appears that Plaintiff only seeks disclosure of the "responsive non-exempt files from OSHA's investigation of TEAM . . .[,] witness statements and interview notes previously withheld with redactions only for identifying information." (Pl.'s Br. at 18). Accordingly, the Court concludes that the issue of whether the documents were correctly withheld under § 552(b)(5) is not properly before the Court. The Court therefore DENIES Plaintiff's Motion for Summary Judgment and GRANTS Defendants' Cross-Motion for Summary Judgment as to the documents withheld pursuant to § 552(b)(5).
D. Exemption 4
Plaintiff also seeks disclosure of documents related to OSHA's investigation of TEAM. From the evidence before the Court, Plaintiff's Motion for Summary Judgment is the first instance when Plaintiff specifically identified documents related to the TEAM investigation. Although OSHA search may or may not have been unreasonably limited in scope, the Court finds the issue regarding those documents for which OSHA has claimed exemption under § 552(b)(4) now moot due to OSHA's adequate search and reply, though delayed. See Voinche v. F.B.I., 999 F.2d 962 (5th Cir. 1993); Potts v. United States Dep't of Treasury, No. Civ.A.3:02-CV-1599-M, 2003 WL 22872408 (N.D. Tex. Oct. 8, 2003).
Although Flowserve's appeal includes a broad reference to documents related to the fire, it never explicitly mentions the TEAM documents and it is not apparent from the record that DOL was ever aware that such documents existed so that it might rule upon OSHA's refusal to disclose those documents. ( See Pl.'s Exh. 13). OSHA "inexplicably" did not include the TEAM documents in its initial or subsequent searches. ( See Def.'s App. at 3). It has produced some documents related to OSHA's investigation of TEAM upon the filing of this Motion, which appears to be the first time Plaintiff explicitly references the TEAM documents.
OSHA has now identified the documents and begun the process of responding to Flowserve's FOIA request, and communicated with TEAM on September 9, 2004, regarding documents which may present commercial confidentiality issues pursuant to the requirements of 29 C.F.R. § 70.26 (2004) and Executive Order 12,600, 52 Fed. Reg. 23,781 (June 23, 1987), 1987 WL 181359. ( See Def.'s App. at 3-4). Until TEAM has responded to OSHA's communications and OSHA has determined what, if any, documents to withhold or release, OSHA is withholding those documents pursuant to its authority under 5 U.S.C. § 552(b)(4). ( See Def.'s App. at 3-4). Neither OSHA nor DOL have made a final agency determination regarding the documents submitted to TEAM for possible commercial confidentiality concerns. Therefore, Flowserve's appeal related to the TEAM documents withheld under § 552(b)(4) is not ripe for review and should be dismissed. See Voinche, 999 F.2d at 963-64. Accordingly, the Court DENIES Plaintiff's Motion for Summary Judgment and GRANTS Defendants' Cross-Motion for Summary Judgment as to the documents withheld pursuant to § 552(b)(4).
IV. Conclusion
For the foregoing reasons, the Court GRANTS Plaintiff's Motion for Summary Judgment and DENIES Defendants' Cross-Motion for Summary Judgment as to the twelve employee statements and interview notes. The Court ORDERS the production of the twelve employee statements and interview notes, redacted to remove personal identity information of the employee witnesses. The Court DENIES Plaintiff's Motion and GRANTS Defendants' Cross-Motion for Summary Judgment in all other respects.
SO ORDERED.